Fairbo Investment Ltd and Another v. Appeal Tribunal (Buildings)

HCAL 35/2012

IN THE HIGH COURT OF THE

HONG KONG SPECIAL ADMINISTRATIVE REGION

COURT OF FIRST INSTANCE

CONSTITUTIONAL AND ADMINISTRATIVE LAW LIST

NO 35 OF 2012

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J U D G M E N T

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A. INTRODUCTION

1.This is the applicants’ judicial review against the decision (“the Decision”) of the Appeal Tribunal (Buildings) (“the Tribunal”) dated 21 December 2011.

2.The 1^st applicant is the owner of a lot of land (“the Lot”) in Kowloon.  It intended to redevelop the Lot into a building for both commercial and residential uses.  The 2^nd applicant is the Authorised Person in charge of the building plans submitted to the Building Authority (“the BA”) for the proposed redevelopment.

3.The BA has in July 2010 and October 2010 disapproved the two respective building plans submitted by the applicants for the proposed redevelopment over the Lot.  The grounds of disapproval of the two building plans were similar.  The applicants appealed against those disapprovals to the Tribunal respectively in August (the 1^st appeal) and October 2010 9(2^nd appeal).

4.The Tribunal heard the two appeals (“the Appeals”) together in October 2011.

5.By way of the Decision, the Tribunal dismissed the Appeals.

6.The applicants now apply to judicial review the Decision.  They ask for an order to quash the Decision and remit the Appeals to a differently constituted Tribunal for reconsideration.  The BA as the interested party opposes the application, while the Tribunal as usual remains neutral to this application.

B. BACKGROUND

7.The background relevant to the grounds raised in this judicial review can be stated as follows.

8.The Lot is at 1-27 Berwick Street, Nos 214-220 Nam Cheong Street and Nos 1-8 Yiu Tung Street, and bears the lot number of NKIL 3586.

9.In July 1950, Conditions of Sale by private treaty was entered into for the sale of the Lot to Tat Hing Land Investment and Agency Co Ltd (“Tat Hing”) for a term of 75 years from 1898 with an option for renewal for a further term of 24 years.  The area of the Lot specified in the Conditions of Sale was about 45,000 sq ft at an annual crown rent of $1,652. However, it was also provided under General Condition 4(a) (“GC 4(a)”) that the exact boundaries of the lot shall be determined before the issue of the crown lease, and the crown rent shall be adjusted by reference to any excess or deficiency of the area so specified.

10.It was thus contemplated in the Conditions of Sale that a crown lease would be subsequently issued in relation to the Lot with its boundaries eventually determined.

11.General condition 9 (“GC 9”) of the Conditions of Sale also provided that:

“Any private streets or roads and scavenging or other lanes which may be formed shall be sited to the satisfaction of the Director of Public Works and included in or excluded from the area to be leased as may be determined by him and in either case shall be handed over to Government free of cost if so required. Where taken over by Government the surfacing, kerbing and channelling shall be carried out by Government at the cost of the purchaser and thereafter maintained at public expense but where remaining part of the area leased or to be leased such streets roads or lanes shall be surfaced kerbed channelled and maintained by and at the expense of the purchaser to the satisfaction in all respects of the Director of Public Works.”

12.Therefore, under GC9, the Government may require the handing over of any private streets, roads or lanes formed at the Lot to her, whether or not the said private streets, roads or lanes are to be (as determined by the Director of Public Works) included or excluded from the areas to be eventually leased.

13.The Lot when developed was later divided into three separate portions by T‑shaped lanes (“the Lanes”) running through the middle of it.  The Lanes have since been used as scavenging lanes.

14.By a letter dated 15 January 1953, Tat Hing’s architects (“C & L”) wrote to the executive engineer of the Roads Office of the Public Works Department (“PWD”) requesting them to submit the demand notes to Tat Hing for surfacing the Lanes.  C&L further stated that the drains in the Lanes were laid by the Drainage Office of PWD at Tat Hing’s costs, and “presumably the lanes will be eventually handed over to Government when the new leases are granted”.

15.The Lot was then carved into thirty-eight sections as NKIL 3586 s A, s B, s C, s D, s E, s F, s G, s H, s I, s J, s K, s L, s M, s N, s O, s P, s Q, s R, s S, s T, s U, s V, s W, s X, s Y, s Z, s AA, s BB, s CC, s DD, s EE, s FF, s GG, s HH, s II, s JJ, s KK, & RP.

16.In 1957, by way of various assignments, the Lot in its divided sections was assigned by Tat Hing to thirty-eight owners as first assignees.  Some of these thirty-eight first assignees were Tat Hing itself.  In each of these assignments, part of the Lanes and the right of way over the other part of them were also assigned to the respective assignees together with the relevant section of the Lot.  For convenience, I would refer to these assignments in 1957 collectively as “the 1^st assignments”.

17.In April 1959, a number of internal memos were exchanged between the Superintendent of Crown Lands & Surveys (“SCLS”) on the one hand and the Chief Engineer of Drainage Works (“CEDW”) and the Chief Engineer of Road Works (“CERO”) on the other hand.  These internal memos show that:

(1) The SCLS asked the CEDW and CERO to confirm whether the Lanes would be taken over by the Government.

(2) The CERO confirmed that the Lanes “should be taken over by the Government”.

(3) The CEDW confirmed that the Lanes “can be taken over” since the sewer in the Lanes was constructed and maintained by the Government.

18.The evidence also shows that some time in 1959, the Government intended to issue (as anticipated in the Conditions of Sale) crown leases relating to all the thirty-eight sections of the Lot.  For that purpose, the Government also intended to assign new lot number to each of the thirty-eight sections of the Lot.  These intended new lot numbers were NKIL Nos 4216 to 4252 (corresponding to NKIL Nos 3586 s A to s KK) and NKIL No 3586 for NKIL No 3586 RP.

19.In respect to this:

(1) In about June 1959, 12 boundary stones were laid at the corners of the three blocks of the Lot separated by the Lanes.  Each of these boundary stones apparently bore the intended new lot number representing the lot where the stone was laid at its corner.  Further, the fees for six of these boundary stones had been paid by the respective owners of the corresponding lots in between April and June 1959.

(2) By a letter dated 23 July 1959 sent to the owner of each of the thirty-eight sections of the Lot, the Crown Lands & Surveys Office of the PWD informed each of them the intended new lot number corresponding to respective section of the Lot, and that the respective crown lease would be issued to each of them “in due course”.

20.However, for reasons cannot now be ascertained, no crown leases were issued in relation to these thirty-eight lots and the intended new lot numbers were never implemented and used.  Thus, the lot number of the Lot remains as of today the old lot number of NKIL No 3586 with the thirty-eight sections.

21.As mentioned above, the 1^st applicant submitted plans to redevelop the Lot in 2010, and the building under the proposed redevelopment would be built over the Lanes.  Further, the plot ratio calculation of the redevelopment also took into account of the area of the Lanes.

22.The applicants submitted first in May 2010 a set of building plans to the BA for approval.  The BA rejected the plans in July 2010 (“the 1^st disapproval”).  The applicants then submitted in September 2010 a second set of building plans (with modifications from the 1^st set of plans) for approval.  The BA again rejected them in October 2010 (“the 2^nd disapproval”).

23.The BA rejected these plans under s 16(1) of the BO[1], and the grounds of rejection that are relevant to this judicial review are that:

(1) The Lanes are government land and thus no new building could be erected on them (“the government land ground”).

(2) S 31(1) of the BO restricts erecting any structures over any portion of street, while regulation 23(2)(a) of the Building (Planning) Regulations (“B(P)R”) restricts taking any part of any street into account in calculating the area of the Lot.  As the Lanes are “streets” for the purposes of s 31 and regulation 23(2)(a), the proposed development with a building over the Lanes is in contravention of these provisions and is therefore not acceptable (“the street ground”).

(3) The applicants had failed to provide further information as requested by the BA to justify (a) the number of car parking spaces proposed to be provided in the development, and (b) the larger than usual size of the refuse room proposed in the development (“the technical ground”).

24.By way of the Appeals, the applicants appealed to the Tribunal against all these grounds.

25.The Tribunal dismissed the Appeals in the Decision and upheld the BA’s above grounds of disapproval.  In coming to that conclusion:

(1) The Tribunal finds that the Lanes had not been legally handed back to the Government pursuant to GC9, as the owners and the Government had not entered into any deed for surrender.

(2) However, the Tribunal further finds that the Lanes are government land.  This is so, as based on the undisputed documentary evidence and the fact that the Lanes have been open to public use and access, the previous owners of the Lot were estopped (applying the doctrine of surrender by estoppel) from denying that they had surrendered the Lanes to the Government, and all the subsequent purchasers of the Lot, including the 1^st applicant, have had notice of this and are thus bound by the estoppel.

(3) Alternatively, the Tribunal finds that the Lanes (if they were private land) are “street” under s 31(1) of the BO and regulation 23(2)(a).

(4) Further, the Tribunal finds that the matters concerning the car parking spaces and the refuse room proposed in the development are not minor mattes, and the BA was entitled under s 16(1)(i) of the BO to ask the applicants to provide further information to justify them. This constituted a valid ground under s 16(1)(i) for the BA to disapprove the plans.

26.The applicants applied for leave to judicial review the Decision in March 2012, and leave was granted by Lam J (as he then was).

C. THIS JUDICIAL REVIEW

27.The applicants raise nine grounds in support of this judicial review in the Amended Form 86[2].

28.However, Mr Neoh SC for the applicants has in the course of his submissions sensibly (and I think rightly) focused and limited his arguments on principally a few grounds in support of his challenge of the Decision.  I hope therefore I would be forgiven for dealing mainly these principal grounds in this judgment.  These arguments can be conveniently grouped under the challenge of the Tribunal’s finding in relation to the government land ground, the street ground and the technical ground.

29.I would look at them in turn.

C1. The challenge relating to the government land ground

30.For the government ground, the Tribunal finds that the Lanes are government land.  The Tribunal’s reasons for the finding can be summarised as follows:

(1) Under GC9, the Government could require the purchaser to hand back any private lanes in the Lot whether they are included in the leased land or not.

(2) In light of the undisputed documentary evidence on the dealing of the Lanes between the relevant government departments and the then owners of the Lot, and the fact that the Lanes had been maintained and repaired by the Government (through the PWD), the Government and the previous owners of the Lot intended to and did have the Lanes handed back to the Government.

(3) As such, even though the surrender was not legally carried out by deed or in writing, by the operation of the doctrine of surrender by estoppel, the owners are estopped from denying that the Lanes had been so surrendered to the Government.

(4) All the subsequent purchasers of the Lot, including the 1^st applicant, have had notice of that surrender, as they are and should be aware of (a) the Government’s right to require the surrender of the Lanes as provided under GC 9, and (b) the Lanes’ appearance of a public street and the fact that they have been open to public use and access.  They are, including the 1^st applicant, thus bound by this surrender by estoppel.

(5) Further, the operation of the doctrine does not require the finding of a further element that it is just and equitable to uphold the estoppel.

See: paragraphs 52-65 of the Decision.

31.The applicants have made the following challenges of this finding in this application.

C1.1   The Tribunal erred in law in its understanding of the law of surrender by estoppel[3]

32.In the Amended Form 86 and the applicants’ skeleton, the applicants contended that the Tribunal misunderstood the law in the doctrine of surrender by estoppel.

33.The Tribunal has set out the principles of law relevant to the doctrine at paragraphs 51, 52 and 56 of the Decision:

“51. The doctrine of surrender by estoppel is succinctly summarized by the learned authors of Woodfall’s Law of Landlord and Tenant, 2011 Vol at para 17.018 and Hill & Redmand’s Law of Landlord and Tenant, Issue 79, August 2011 at paras A[4290] to [4303] which are relied on by the Respondent. The following principles can be extracted relating to the said doctrine.

(a) The surrender is by way of law and does not depend on the actual intention of the parties and can take place in spite of their intentions.

(b) The foundation of the doctrine is estoppel.

(c) The doctrine is applied where the owner of a particular estate has been a party to some act the validity of which he is afterwards estoppel from disputing, and which would not be valid if his particular estate had continued to exist, in other words such act is inconsistent with the continuance of the lease.

(d) The classic example of an act supporting the application of the doctrine is redelivery of possession of the demised premises and unequivocal acceptance of such redelivery of possession by the landlord.

52. The principles of the above doctrine are not disputed by the Appellants. The Appellants’ Counsel, however, disputes their application to the present case. Mr Ismail submitted in essence that the acts relied on by the Respondent were only unilaterally acts of the Government whereas the conduct of the owners were omissions rather than positive acts. The parties’ acts and omissions were thus still consistent with the continuation of the leases of the sub-divided lots with the Lanes until the new leases without the Lanes were entered into. Furthermore, the Appellants argued that the circumstances are such that it would be inequitable to maintain that the Lanes are not part of the sub-divided lots, especially when the Government had ample opportunity to register the lease plans and record sheets with the new lot numbers in the Land Registry. Finally, the Appellants submit that in any event even if the surrender of the Lanes need not be by deed, lease(s) of the sub-divided lots without the Lanes have to be by deed because they create legal estates in land.

56. The doctrine of surrender by estoppel does not require the equitable considerations of whether it will be just and equitable to uphold the estoppel.  The Appellants’ Counsel has not supported his submission that such equitable consideration is a relevant element for the application of the doctrine.  Furthermore, the surrender by operation of the doctrine by estoppel does not depend on whether subsequently there were new grants of new lots. Thus there is no merit in the Appellants’ argument that the new leases of the sub-divided lots were not done by deed.  In the premises, by reason of the finding of the Tribunal that the Lanes were equivocally and effectively redelivered to the Government under GC9 the owners are estopped from disputing the surrender to the Government.”

34.Thus, in disagreeing with the applicants’ submissions (as stated at paragraphs 52 and 56 of the Decision), it is the Tribunal’s view that the doctrine does not require a further consideration of what justice and equity require once it is found that the parties have unequivocally acted in a way inconsistent with the continuance of the lease. In other words, the relevant estoppel arises from the inherent inequity in a party seeking to deny its earlier unequivocal conduct of a surrender.

35.Mr Neoh (together with Mr Ismail) in their skeleton sought to argue that the Tribunal’s above understanding of the law was incorrect.  He maintained initially that the application of the doctrine required a further consideration of the element of equity even if it has been found that the parties have acted unequivocally in a way inconsistent with the continuance of the lease in question.

36.Mr Abraham Chan for BA however submits in his skeleton that the Tribunal’s understanding of the law is clearly correct.  Counsel says the authorities overwhelmingly support the understanding that the requirement of the element of inequity is inherent in the finding of the relevant unequivocal conducts itself, which renders it inequitable for a party seeking to resile from that position[4].

37.However, when it comes to the hearing, Mr Neoh accepts that the relevant principles of the doctrine are as stated in Sable v QFS Scaffolding Ltd [2010] EWCA Civ 682 at paragraphs 7-16 (an authority cited and relied on by Mr Chan), which are as follows:

“7. There is no disagreement between the parties as to the legal principles which are to be applied in this case.

8. Both parties accepted that the law as to surrender by operation of law is conveniently summarised in Woodfall's Law of Landlord and Tenant, looseleaf edn, Vol 1, paras 17.018 to 17.032.

9. The specific way in which the landlords put their case is that they say that they granted a tenancy (specifically, a tenancy at will) to a new tenant (QFS) with the assent of the lessee (LDC), so that the Lease formerly vested in LDC was surrendered by operation of law.

10. Rather than set out substantial passages from Woodfall, I will refer to the propositions which appear in Woodfall and which are relevant to the specific way in which the landlords put their case on this appeal.  Sometimes the propositions in Woodfall refer to the position of a tenant and sometimes they refer to the position of a landlord.  This is usually as a result of Woodfall referring to a decided case in which the principles were applied to the position of a tenant or a landlord, as the case may be.  As the general propositions ought to apply to both parties, I will adapt the propositions in Woodfall to refer to the position of a landlord and of a tenant.  Further, as these propositions are taken from a number of different paragraphs in Woodfall, there may be some element of repetition.  The propositions are:

i) there is no legal distinction between a surrender by operation of law and an implied surrender;

ii) the term surrender by operation of law is applied to cases where a landlord or a tenant has been a party to some act, the validity of which he is afterwards estopped from disputing, and which would not be valid if the tenancy had continued to exist;

iii) the principle does not depend upon the subjective intentions of the parties but upon estoppel;

iv) in this context, there is no estoppel by mere verbal agreement; there must in addition be some act which is inconsistent with the continuance of the tenancy;

v) in point of time, the surrender is treated as having taken place immediately before the act to which the landlord or the tenant is a party;

vi) the conduct of the parties must unequivocally amount to an acceptance that the tenancy has ended; there must be either a relinquishment of possession and its acceptance by the landlord, or other conduct consistent only with the cesser of the tenancy;

vii) it has been said that the circumstances must be such as to render it inequitable for the landlord or the tenant to dispute that the tenancy has ended;

viii) an agreement by the landlord and the tenant that the tenancy shall be put an end to, acted upon by the tenant's quitting the premises and the landlord by some unequivocal act taking possession, amounts to a surrender by operation of law; the giving and taking of possession must be unequivocal;

ix) where the tenant requests the landlord to let the property to a third party, and the landlord does so, the lease is surrendered at the time of the new letting; the surrender does not take place before the time of the new letting; it is essential that the new letting is effected with the consent of the original tenant; if the original tenant does not consent or know of the new tenancy, there is no surrender; the original tenant's consent may be inferred from conduct or from long acquiescence in the new arrangement;

x) a surrender by operation of law may take place where the landlord, with the original tenant's consent, accepts a new tenant as his direct tenant; the consent of the landlord and the original tenant is needed.

11. I will offer some brief comments of my own on the above propositions.

12. The requirement that the conduct of the parties must be inconsistent with the continuation of the lease has been described as ‘a high threshold’: see Bellcourt Estates Ltd v Adesina [2005] 2 EGLR 33 at [30] per Peter Gibson LJ.  The above propositions stress that the conduct must be unequivocal.

13. A number of cases have stated that the circumstances must be such as to render it inequitable for the landlord or the tenant to dispute that the tenancy has ended; see, for example, Proudreed Ltd v Microgen Holdings Plc [1996] 1 EGLR 89 at 90D and Belcourt Estates Ltd v Adesina at [19]-[21].  This proposition has also been stated in Woodfall (at para 17.020).  However, in the recent case of Artworld Financial Corporation v Safaryan [2009] EWCA Civ 303, it was said that this way of putting the proposition does not involve any separate inquiry into the equity of the matter; instead, if there is an unequivocal offering and taking of possession, then it will be inequitable (without more) for one party to deny that the tenancy has ended by surrender: see at [28] per Dyson LJ.

14. The authorities in this area all say that the underlying principle is one of estoppel.  Where the conduct of a party is inconsistent with the continuation of the tenancy, that party is estopped from contending that the tenancy subsists.  In general, the case law in this area has not involved a separate examination of questions such as reliance, or detriment, or change of position, or unconscionability, or whether the effect of the estoppel is temporary or permanent.  It may be that the principles as to surrender by operation of law have evolved along their own path.  The result which has been produced is that where both parties act on the basis that the tenancy has ended, the result will be that the tenancy has ended.

15. In the course of his submissions for the landlords, Mr Rosenthal relied heavily on what was said in, and what was omitted from, a report to creditors prepared by the administrative receivers of LDC.  My Lord, Longmore LJ, asked Mr Rosenthal whether the landlords intended to rely upon general principles as to estoppel, which would have involved an investigation into matters such as reliance and change of position.  Mr Rosenthal answered that he did not rely upon the general principles relating to estoppel but instead he relied upon the particular type of estoppel which is involved in the principles relating to surrender by operation of law, as described in Woodfall.

16. In view of the fact that both parties in the court below and in this court, and the judge in his judgment, relied exclusively on the principles relating to surrender by operation of law as described in Woodfall, it is not necessary to consider wider issues relating to estoppel.”

38.As I understand it, in substance, Mr Neoh no longer argues that there is a separate requirement of the finding of inequity for the doctrine to apply once there is a finding of unequivocal acts on the parties which are inconsistent with the non-surrender of the lease in question.  He therefore accepts that the inequity required could be inherent in the finding of such unequivocal acts themselves.  However, what leading counsel emphasizes is that the principles require the Tribunal to apply “a high threshold” in finding whether there are such unequivocal acts and that requires the support of very cogent and clear evidence, in particular in a case where the surrender of the ownership of land (in contrast with the surrender of a tenancy) is concerned.

39.Understood as such, I do not think the Tribunal has erred in its understanding of the principles of the doctrine of surrender by estoppel as stated in the Decision quoted above.  I therefore reject this ground.

40.Mr Neoh’s real complaints are the Tribunal’s treatment of the evidence in applying these principles.  These are set out in his other grounds of challenge, which are what I would turn to next.

C1.2   The Tribunal has taken into account irrelevant consideration and has failed to take into account relevant consideration in its finding of surrender by estoppel, or alternatively, the finding is Wednesbury unreasonable[5]

41.The Tribunal sets out at paragraphs 53 and 55 the evidence it relies on to infer such unequivocal acts to found the estoppel:

“53. Having carefully considered the history of the matter relating to the Lanes and the acts of the parties in the context of the pertinent question of whether the owners of the Lot did redeliver the Lanes to the Government, the Tribunal comes to the conclusion that based on the undisputed facts and acts of the parties, especially the Government’s clear intention of taking over the Lanes at an early stage in late 1950’s and having taken over the Lanes for the purposes of (1) maintenance of public facilities by the Highways Department and the Drainage services Department and (2) public access to the Lanes for years, objectively, effectively and unequivocally the Lanes had been redelivered to the Government pursuant to the second limb of the Government’s right in GC9.

54. The more significant acts and evidence which support the above inference and conclusion are listed below,

(a) By a letter dated 15^th January 1953 [D/53] Messrs Chau & Lee, Architect and Engineering of the first owner requested the Roads Office to give them the demand note for surfacing of the Lanes and they informed the Roads Office that the drains in the lanes were laid by the Drainage Office at the owners’ costs and presumably the Lanes will eventually by handed over to the Government when the new leases are granted. By this letter the intention on the part of the then owners was clearly that the Lanes were to be handed over to the Government even as early as 1953.

(b) By a memorandum dated 6^th April 1959 the Chief Engineer of the Roads Office, WC Bell recorded that ‘It is confirmed that the scavenging lanes (the Lanes) on the above Lot should be taken over by Government’. The memorandum continued to state that, ‘As the lanes were surfaced by Government in 1953 and are in a reasonable condition, I consider that the repair of the minor pot-holes be carried out by Government under normal maintenance’. The letter shows a clear intention on the part of the Government to take over the Lanes, which act of taking over was actually being done due to the fact that the Lanes were surfaced by the Government and future maintenance was to be done by the Government.

(c) According to the specimen lease plan prepared on 20^th April 1959 [D/40] depicting the boundaries of the thirty-eight new lots which were intended to replace the old lot, the Lanes were not included in the areas of the new lots.

(d) thirty-eight Lease Plans with the new lot numbers depicting the exact boundaries of the new lots were prepared by the Assistant superintendent of Surveys in May 1959 where the Lanes were not included in the new lots [E/5-34].

(e) A set of thirty-eight new lot numbers were assigned by the Government in place of the previous thirty-eight section numbers and written notices of such re-assignments were served on the owners in July 1959 [D/69-107].

(f) The various Land Record Sheets in the 1960’s [E/72], 1974 [E/73] and 1993 [E/74] prepared and kept by the District Survey Office/ Kowloon show that again no lot number was assigned to the Lanes which were excluded from the intended new lots.

(g) The thirty-eight new lot lease plans were sent to the Chief Building surveyor in July 1959 for retention and also to the Registrar General (now the Registrar of the Land Registry) in July 1959 for his necessary action [E/4 and E/34A].

(h) The undisputed evidence of Mr Poon Wai-wing, engineer of the Drainage services Department that records were kept and found relating to the maintenance work performed by the said Department on the Lanes since 2002.

(i) Boundary stones were placed to indicate that the Lanes were not included in the new lots.

55. The Tribunal do note that apart from the letter dated 15^th January 1953 from Chau & Lee on behalf of the first owner there is no evidence in terms of positive acts on the part of the owners to directly show when the owners intended or physically re-delivered the Lanes to the Government.  However, taking the said letter and the records and evidence above stated, the intention and actual conduct of the parties must have been that the Government would and did take over the Lanes though the replacement of the new lot numbers with the new plans in place of the old lots were for some unknown reasons not having formally implemented.  However, that does not affect the weight of the undisputed evidence and facts that the Lanes and the public facilities underneath their surface eg public drainage system have been maintained by the Government and that the Lanes have been for public use and assess while the owners of the Lot have not been asserting or enjoying exclusive possession of the Lanes.  In the circumstances, the reasonable inference is that the Lanes were re-delivered unequivocally and effectively to the Government.”

42.Mr Neoh says that, in considering the evidence as set out at paragraph 54 of the Decision, the Tribunal has failed to take into account the evidence of the 1^st assignments whereby Tat Hing assigned the Lot (carved into thirty-eight sections) to various first assignees.  Mr Neoh submits that this evidence shows clearly that by 1957, Tat Hing (as the then owner and grantee of the Lot) did not have any objective intention to surrender the Lanes.  This is so because:

(1) As shown in each of the 1^st assignments and the plan attached to it, in assigning the relevant section of the Lot to the first assignee, Tat Hing also assigned to the assignee the part of the Lanes adjacent to that section and the right of way to the other part of the Lanes.

(2) As such, by July 1957, there could not be any objective intention on Tat Hing to surrender the Lanes to the Government.

(3) Further, the act of assigning the Lanes to its successors in title (through the 1^st assignments and all the subsequent assignments) is also an act inconsistent with all these owners surrendering the Lanes to the Government.

(4) The 1^st assignments and the fact that the Lanes were also assigned to the 1^st assignees in 1957 and later in subsequent assignments must be relevant to the question of whether there was implied surrender of the Lanes by the owners to the Government.  In particular when the Tribunal also took into account the letter of C&L in 1953 (which is prior in time to the 1^st assignments) to support the finding of the estoppel (see paragraphs 54(a) and 55 of the Decision).

(5) Moreover, the evidence of the assignment history is also relevant in another respect: Tat Hing had by these assignments assigned the Lot (together with the Lanes) to a number various and different assignees.  Against this context and history, it would require even more cogent and clearer evidence to show that, after 1957, all these different and individual owners (instead of just one owner viz Tat Hing) had each acted unequivocally to have surrendered the Lanes to the Government.

(6) Although the Tribunal has referred to the 1^st assignments at paragraph 32 of the Decision as part of the general background evidence, it has not taken this relevant evidence into account (which negates the acts and intention of an implied surrender) in its weighing exercise of the evidence as set out in the Decision.

43.I agree with Mr Neoh.

44.I accept that the evidence relating to the 1^st assignments and the fact that the Lanes were also assigned by Tat Hing to the various 1^st assignees (and also to the subsequent purchasers by way of subsequent assignments) are relevant to the question of whether there had been implied surrender of the Lanes to the Government by the owners post 1957.  This is particularly so given (a) the high threshold of the quality of evidence required of in establishing an implied surrender, and (b) that the Tribunal has not found nor set out in the Decision the time by which it says there should be a surrender by all the owners of the Lanes to the Government.

45.The failure to take this relevant evidence into account in the weighing exercise amounts to an error of law.  The finding on surrender by estoppel should be quashed on this basis.

46.Mr Neoh next argues that the Tribunal has also made a mistake of fact or looked at irrelevant consideration in taking into account the written notices set out at paragraph 54(e) of the Decision.  These notices are the ones where the SCLS wrote to each of the individual owners of the thirty-eight sections of the Lot in July 1959, informing them that the Government would reassign a new lot number to each of those sections and issue a crown lease in due course.

47.Counsel’s arguments run in this way:

(1) In writing these letters, the SCLS was obviously aware of the respective 1^st assignments assigning the respective sections of the Lot to the assignees.  This is so because the letter referred to the specific section of the Lot and the identity of the respective 1^st assignee.  This information was contained in the relevant assignment.  As such, the SCLS was thus also aware of the fact that the Lanes had been assigned by Tat Hing to the 1^st assignees by way of the 1^st assignments.

(2) Therefore, these notices are not evidence in support of acts or intention of the parties to surrender the Lanes.  Quite to the contrary, they are evidence showing that there was at that time no intention nor acts to surrender the Lanes.

(3)     The Tribunal thus made a mistake of fact in treating these notices as evidence in support of the surrender. Further or alternatively, the Tribunal has taken into account irrelevant consideration in treating these as matters in support of the surrender.

48.With respect, I am not persuaded by these submissions.

49.It is clear from paragraph 54(e) of the Decision that when the Tribunal refers to and relies on these notices in support of its finding of surrender by estoppel, it is referring to the fact (as shown in these notices) that (a) the Government intended and had taken steps to assign new lot numbers to the Lot and (b) the owners were informed of these.  Insofar as these facts are concerned, the Tribunal has not made any mistake nor has it taken into account irrelevant consideration.  The notices do support these matters.

50.Insofar as Mr Neoh’s contentions that these notices are in fact evidence negating acts or intention of surrender as they show that the Government was aware of the fact that the Lanes were assigned by Tat Hing to the 1^st assignees, this is in my view just another way of complaining that the Tribunal has failed to take into account the assignments in its weighing exercise as argued above.  To that extent, I have already accepted that the Tribunal erred in law in failing to do so.  I do not think it adds anything further in relation to the Tribunal’s reference to and reliance on these notices as explained above.

51.For these reasons, I reject this part of the complaint.

52.Finally, the applicants also complain about the Tribunal’s reliance and reference to the laying of boundary stones as the proof that the Lanes were not included in the new lots as set out at paragraph 54(i) of the Decision.  Mr Neoh says that, in accepting this evidence in the way as stated, the Tribunal had failed to take into account the evidence that (a) the new lot numbers were never implemented at the end, (b) seven of the twelve boundary stones had gone missing, and (c) only six of the stones’ fees had been paid by the owners.

53.I agree with Mr Neoh that the Tribunal should have taken into consideration the fact that new lot numbers were never implemented in its reliance on the evidence of the boundary stones:

(1) The Tribunal has apparently accepted the BA’s evidence set out in Mr Hung Wing Wo’s witness statement that the laying of these boundary stones was to mark the new lot numbers.  The Tribunal apparently also considers that the new lot numbers did not include the Lanes as they were placed at the corners of the block of the Lot divided by the Lanes. This therefore supports the Tribunal’s finding of the implied surrender as it regards this as evidence of the Government’s acts of demarcating private land and government land by reference to the Lanes, and the owners’ acceptance (by acquiescence and also by payment of the stones’ fees) of these acts.

(2) Understood as such, it must then be relevant to take into consideration the fact that the new lot numbers were in fact never implemented.  If the intention to assign new lot numbers was to be taken as evidence in support of surrender, the fact that the new lot numbers were eventually never implemented (and without knowing the reasons why so) could in my view at least equally be considered as evidence showing that there was no or no intention and acts to surrender and take over the Lanes.

(3) Although the Tribunal has set out at paragraph 55 of the Decision that it has taken note of the fact that the new lot numbers had not been implemented, it has not explained why it still relies on the laying of the boundary stones in support of the implied surrender despite this fact.

(4) In my view, the reliance on the laying of the boundary stones by the Tribunal as a fact in support of the finding of implied surrender is Wednesbury unreasonable without also an explanation why it is so in light of the fact that the intended assignment of the new lot numbers was never carried out.

(5) The finding on the surrender by estoppel should therefore also be quashed on this basis.

54.However, I do not agree with Mr Neoh that the evidence that 7 of the 12 boundary stones were missing and that only 6 owners had paid the boundary stones’ fees are relevant matters that the Tribunal should also take into account in this respect.  This is so as these matters in my view do not affect the question of whether the stones were laid initially with the intention to demarcate the new lots and the Lanes.

55.For the above reasons, I accept that the Tribunal has erred in law in its analysis and reliance of the evidence in support of implied surrender in failing to take into consideration the relevant evidence that (a) the Lanes were assigned together with the thirty-eight sections of the Lots to the thirty-eight 1^st assignees under the 1^st assignments, and further subsequently (under the subsequent assignments) to the subsequent purchasers, and (b) the new lot numbers supposed to be assigned to the Lot were never implemented[6].

56.The Tribunal’s conclusion on the government land ground based on its finding of surrender by estoppel should therefore be quashed.

C1.3   Other grounds challenging the surrender by estoppel finding

57.The applicants have also raised a number of other challenges of the Tribunal’s finding of surrender by estoppel[7].  These grounds can be summarised as follows[8]:

(1) As a matter of construction, GC9’s obligation to hand back the Lanes to the Government when required only binds Tat Hing as the grantee under the Conditions of Sale but not its successors-in-title.  Its operation therefore has a time-limit and it only “bites” before Tat Hing sells the Lot to other purchasers.

(2) Further or alternatively, the operation of the doctrine of surrender by estoppel is excluded by GC9 read together with GC4 and Special Conditions 6 to 11.

58.The above grounds based on the construction of GC9 were not raised before the Tribunal.

59.Further, as far as I can see, these arguments on the construction of GC9 could also be facts sensitive as its proper construction might require the calling of evidence relating to the background matrix when the Government and Tat Hing entered into the Conditions of Sale.  If these arguments had been raised in the Appeals, the BA might adduce evidence on the relevant background matrix to aid the construction of their terms and conditions.  Moreover, the applicants were represented by experienced counsel[9] before the Tribunal, and there are no explanations before me as to why these grounds, if they are good ones, were not raised then.

60.For these reasons, I am therefore not prepared to entertain these grounds in this judicial review.

61.In any event, I do not find these grounds of any substance in challenging the finding on surrender by estoppel:

(1) In relation to the arguments that GC9 has a time limit in its operation, even if this is correct (of which I am not determining), it is simply not relevant to the question of whether there is a surrender by estoppel in the circumstances of the present case.  The finding of the estoppel is simply not dependent on the actual and factual operation and compliance of GC9.  Even if the parties were under a common mistaken understanding of the effect of GC9 (in that there was no time limit to its application), the doctrine of estoppel[10] could still apply.

(2) In relation to the argument that GC9 read together with the other provisions in the Conditions of Sale excludes the operation of the doctrine of surrender by estoppel is to me also unarguable.  The doctrine of estoppel is developed by the courts to intervene in circumstances where justice and equity of the case demands it, in particular and usually in situations where the relevant legal requirements have not been complied with. Therefore, the mere fact that the various provisions in the Conditions of Sale have expressly provided for how the legal and contractual surrender of the Lanes should be carried out could not per se have also excluded the application of the doctrine without any clear and express words to that effect.

62.I therefore reject the challenge of the finding on estoppel based on these grounds.

C1.4   The Tribunal erred in law in finding that the 1^st applicant was not a bona fide purchaser without notice and was thus bound by the surrender by estoppel

63.The Tribunal finds that the 1^st applicant as a bona fide purchaser of the Lot was fixed with the notice of the surrender by estoppel and thus bound by it.  The Tribunal sets out its reasons for this finding at paragraphs 57 and 58 of the Decision as follows:

“57. It is common ground between the parties that the doctrine of surrender by estoppel is a common law doctrine by operation of law which is unwritten and therefore requires no formality of writing under section 4(2) of the Conveyancing and Property Ordinance, which provides that ‘a surrender by operation of law, including a surrender which may, be effected without writing’. In the present case the surrender to the Government by operation of law is not founded on any document. Accordingly, the Land Registration Ordinance, especially section 3(2) thereof relied on by the Appellants which applies to unregistered documents, is again not applicable. Instead the common law principle of bona fide purchaser of legal estate for value without notice will come into play to decide if the subsequent purchasers/ owners including the 1^st Appellant are bound by the said surrender by operation of law. If the 1^st Appellant is not a bona fide purchaser for value without notice it will be so bound. The Respondent logically has not taken any point concerning the status of ‘purchaser’ and ‘for value’. The Respondent contends that all the subsequent purchasers are with notice of the surrender to the Government.

58. The starting point to resolve this issue is again GC9 in the Conditions of Sale which is registered in the Land Registry so that any purchasers of the Lot will be fixed with notice, whether actual or constructive, of the existence of GC9 and the fact that the Government had the right to require the Lanes to be handed over to the Government.  Furthermore, it is common ground that the physical state of the Lanes which are open to the public use and access have the appearance of public streets.  Accordingly, any reasonable person in the capacity of a purchaser of the Lot must be put on notice and thus on enquiry as to the fact that the Government at some stage had physically been handed over the Lanes as empowered under GC9.  The above notice is irrespective of the intended replacement of the new lot numbers and plans pertaining thereto which are not registered at the Lands Registry and therefore may not be known to such purchasers.  In the circumstances the Tribunal finds that the 1^st Appellant is fixed with notice of the surrender of the Lanes to the Government and is not a bona fide purchaser for value without notice.  The 1^st Appellant is bound by and took the Lanes subject to the interest of the Government in the Lanes.”

64.The Tribunal’s finding is therefore based on the 1^st applicant’s objective knowledge of (a) the right of the Government to demand a handing over of the Lanes under GC9, and (b) the fact that the Lanes had the appearance of a street and had been open to public use and access.

65.The applicants say the Tribunal erred in law in this finding.  The applicants’ contentions are set out at paragraphs 58 to 61 of the Amended Form 86 as follows:

“58. First, although the Conditions of Sale were registered in the Land Registry (so that any purchasers of the Lot will be fixed with notice, whether actual or constructive, of the existence of GC9):-

(a) as stated in paragraph 33 of Decision, no agreement to surrender and re-grant of any part of the thirty-eight sections of the Lot without the Lanes and no document to signify such a surrender and re-grant were recorded in the Public Records Office of Hong Kong or registered in the Land Registry. The handing over of the Lanes to the Government was not recorded in the Public Records Office of Hong Kong or registered in the Land Registry;

(b) as stated in paragraph 34 of Decision the old lot numbers (which included the Lanes) were used since 1993 and are still used, in the land search records in the Land Registry; and

(c) no declarations that the Lanes were public streets were published in notices in the Gazette, and no copies thereof together with plans showing the Lanes as public streets were registered in the Land Registry under section 14 of the Land (Miscellaneous Provisions) Ordinance, Cap 28. ; and

(d) there is no evidence that the Crown Rent had been reduced as a result of acceptance of any surrender nor is there evidence that the Crown Rent was apportioned at all by the Land Officer or in accordance with the then Crown Rents (Apportionment) Ordinance, Cap 125 (‘CR(A)O’), section 8(2) of which provides: ‘Every determination (of Crown Rent apportionment) shall be signed by the Land Officer and shall be registered by him in the Land Office against ever section in respect whereof the rent is determined and also against the remaining portion’.

59. Secondly, the fact that the Lanes are open to the public for use and access and the fact that their physical state have the appearance of public streets (whatever this means) is not evidence that ‘the Government at some stage had physically been handed over the Lanes as empowered under GC9’ because such public use and access and appearance may exist or have existed without such handing over, for example, under a bare licence by the owners.

60. Thirdly, if, which is denied, any person ought to have enquired, such person would have discovered the facts in paragraphs 58(a), (b) and (c) above which show that the Leases were not surrendered or deemed surrendered.

61. Fourthly, tThe fact that the Lanes are open to the public for use and access and that their physical states have the appearance of public streets is not evidence of an unequivocal surrender and unequivocal acceptance of such act of surrender: see R v Hammersmith and Fulham London Borough Council, ex parte Quigley.” (the underlined parts represent the amendments made in the Amended Form 86)

66.Other than what are stated at paragraphs 58(d), 59 and 60 of the Amended Form 86, all the arguments made in support of this ground are in substance a re-run of the arguments on how to assess the evidence made before the Tribunal.  These therefore relate to a complaint of how the Tribunal had weighed the evidence.  It is trite that the court in judicial review generally would not interfere with the evidence weighing exercise of the Tribunal.  There are therefore no merits in these complaints.

67.Insofar as paragraph 58(d) is concerned, similar to what is mentioned above[11], the fact that there was no adjustment of crown rent was not relied on by the applicants before the Tribunal as a basis for arguing against the question of bona fide purchaser without notice.  This is a fact sensitive matter.  There are also no explanations by the applicants as to why this was not relied on in the Appeals.  In the premises, this court would not allow this argument to be raised for the first time in this judicial review.  See: Ko Siu Luen v Appeal Tribunal (Buildings) [2012] 1 HKLRD 149 at paragraphs 60-63.

68.In relation to the argument stated at paragraph 60 of the Amended Form 86, from what I can see from their closing submissions in the Appeals, the applicants had not made such an argument of reasonable enquiry before the Tribunal.  This again is fact sensitive.  There are also no explanations as to why the argument was not made by the applicants before the Tribunal.  I therefore also would not entertain this in this judicial review.

69.However, insofar as the Tribunal’s reliance on the fact that the Lanes are open to the public for use and access as a factor to found the necessary notice binding on the 1^st applicant, Mr Neoh emphasizes that the mere fact that the Lanes are open to the public for use and access is at best neutral as an evidence of surrender as the public could well use it by way of a mere licence.

70.The applicants in their closing submissions before the Tribunal did raise the argument that the public’s access and use of the Lanes was neither here nor there as it could be that the Lanes were opened to their use “by the existing owners themselves”[12].

71.The Tribunal however has not dealt with this part of the argument.  It also has not made any finding, in light of this argument, as to what the kind of “right” the public had in having access and use of the Lanes.  Insofar as if the Tribunal is saying that the public has a “right” to use the Lanes because the Lanes, as it has found earlier in the Decision, have already been surrendered to the Government by the owners under the doctrine of estoppel, this conclusion on notice must now be quashed and be reconsidered in light of my above conclusion in quashing the finding on surrender by estoppel.  If the Tribunal is not relying on the surrender to give the public the right to use the Lanes, then the Tribunal has also erred in law in this part of finding as it has failed to deal with the applicants’ argument and make the necessary finding as to what kind of right the public has had to use the Lanes so as to give notice to the 1^st applicant of a surrender[13]. The finding of notice is thus not supported by sufficient factual basis.  This finding must also be quashed on this basis.

C2. The challenge of the finding on the street ground[14]

72.S 31(1)(a) of the BO provides as follows:

“Projection on or over streets

(a) No building or other structure shall be erected in, over, under or upon any portion of any street whether or not on land held under lease from the Government unless…”

73.Thus, under s 31(1), no building can be erected over any street whether or not it is on Government or private land.

74.As mentioned above, in upholding the street ground, the Tribunal has also found that, even if the Lanes had not been surrendered to the Government and remained owned privately by the 1^st applicant, the Lanes are “streets” for the purpose of s 31 of the BO, and as such no building could be built upon it.

75.The Tribunal has come to that finding on the basis that:

(1) It is common ground between the applicants and the BA that, for the purposes of s 31 of the BO and regulation 23(2) of the B(P)R, the test of the meaning of “street” is as laid down in the authority of Building Authority v Appeal Tribunal (Buildings) and Estoree Ltd[15], which isthat:

(a) It has the physical characteristics of a street; and

(b) There is some third party right of way over that area.

(See paragraphs 74 and 81 of the Decision)

(2) The said test of “street” is satisfied in relation to the Lanes as:

(a) It is uncontroversial that the Lanes have the physical characteristics of a street; and

(b) The Tribunal finds that Lanes have been subject to “a right of way” which has been created in favour of the Government.  The public have also been enjoying this “right of way” through the Government by having access to them.

(See paragraphs 82 and 83 of the Decision)

76.The applicants submit that in coming to this finding, the Tribunal has erred in law.

77.I agree. My reasons are as follows.

78.The Tribunal explains how it has come to that finding at paragraph 83 of the Decision as follows:

“83. In the premises, the Tribunal will adopt the findings made in relation to the interpretation of GC9, the redelivery of possession of the Lanes to the Government pursuant thereto and the public access and maintenance of the Lanes and the public facilities thereof by the Government at public expense in this Decision. By virtue of such findings, even if the Lanes had not been surrendered to the Government, a right in favour of the Government was created through whom the public also enjoys the right to have access to the Lanes and to effect repair and maintenance of the Lanes without having to resort to any permission of the owners of the Lanes including the 1^st Appellant. Such right is a right of way and right over the Lanes which qualifies as a right of ‘third party’ under the said test. Such right not being created by any document, the Land Registration Ordinance again has no application. Further, the 1^st Appellant had notice of such right as the Tribunal has found earlier on in this Decision. In the premises, the Tribunal finds that the Lanes fall within the definition of ‘street’ under section 31(1) of the BO and therefore the Respondent was right to disapprove the 1^st and 2^nd Submissions on that ground.”

79.Thus, in concluding that “a right of way” has been created in favour of the Government, the Tribunal relies on (a) its findings made in relation to the interpretation of GC9, (b) the redelivery of possession of the Lanes to the Government pursuant to GC9, and (c) the public access and the Government’s maintenance of the Lanes and the public facilities thereof at public expense.

80.Properly understood, factors (a) and (b) effectively refer to the fact that the Lanes have been maintained by the Government (see paragraphs 53-56 of the Decision).  I accept Mr Neoh’s submissions that the mere fact that the Lanes have been maintained by the Government without more is equally consistent with a mere licence granted by the owners of the Lanes to the Government, in particular in light of the fact that there are public sewage drains laid underneath them.

81.Insofar as factor (c) is concerned, as I have explained at paragraphs 69 to 71 above, again the fact that the public have had access and use of the Lanes is also consistent with the existence of a mere licence only.

82.However, the Tribunal has not explained further as to why it could base on these factors alone (and without any further evidence) to find that the Government has obtained a “right of way” over the Lanes (which signifies a legal right that the Government can insist upon and the owner of the Lanes cannot revoke it) instead of a mere licence.  In the premises, I have come to the view that this finding is not supported by the evidence or that the finding is Wednesbury reasonable. The Tribunal has therefore erred in law in this conclusion.

83.In seeking to defend the Tribunal’s above finding, Mr Chan for the BA has advanced two further arguments.

84.First, Mr Chan submits that, for the purpose of s 31 of the BO, the case of Estoree does not in fact apply, as that case concerns only with the application of regulation 23(2) of the B(P)R, and thus the meaning of a “street” under regulation 23 of the B(P)R.  At the same time, the definition of “street” for the purpose of s 31 of the BO is set out at s 2(1) of the BO, while the definition of “street” for B(P)R is set out at regulation 2(1).  In the premises, for the purpose of determining the meaning of “street” under s 31 of the BO, one should only apply and look at the meaning at s 2(1) thereof, which provides that it “includes the whole or any part of any square court or alley, highway, lane, road, road-bridge, footpath, or passage whether a thoroughfare or not”.  Under this definition, it is not necessary for the street to be subject to a third party’s right (as propounded in Estoree).

85.I reject these submissions:

(1) This is an entirely new argument, which is clearly contrary to the position taken by counsel for the BA before the Tribunal[16]. As mentioned above, it was common ground before the Tribunal (as recorded in the Decision and borne out by BA’s own closing submissions) that the test of whether the Lanes fell within the meaning of street was the one laid down in Estoree. This was the entire premise upon which the Tribunal proceeded to deal with this question.  I see no justification for allowing the BA to run an entirely contrary position now.

(2) In any event, I do not think the submissions are correct.  In my view, Estoree is a case decided on the basis that the meaning of “street” as defined under s 2(1) of the BO and under regulation 2(1) of the B(P)R must be considered together.  As said by Hartmann J (as he then was) at paragraph 2 of that case:

“2. Definitions of the word ‘street’ do appear in the legislation. S.2(1) of the Ordinance defines ‘street’ in the following way:

‘In this Ordinance, unless the context otherwise requires— … ‘street’ includes the whole or any part of any square, court or alley, highway, lane, road, road‑bridge, footpath, or passage whether a thoroughfare or not; …’

Reg.2(1) of the Regulations says that :

‘In these regulations, unless the context otherwise requires, words and expression [sic] have the meaning attributed to them by the Buildings Ordinance, and— … ‘street’ includes any footpath and private and public street; …’

The Privy Council, in Attorney General of Hong Kong v. Mightystream Ltd [1983] 1 WLR 980 (at 983), held that the two definitions must be considered together.”

(3) Therefore, the decision in Estoree on the definition of “street” in my view applies equally to the meaning of “street” under s 31 of the BO.

86.Second, Mr Chan contends that even if the Estoree test is to apply, and the finding that there has been “a right of way” created over the Lanes in favour of the Government cannot be supported, the Government’s “right” under GC9 to demand the handing over the Lanes at any time is a third party’s right which is legally enforceable against the 1^st applicant.  The Lanes are therefore subject to that third party’s right and is thus a street under s 31 of the BO.

87.I would decline to deal with this argument in this application:

(1) Again, this is an argument raised for the first time in this judicial review and not before the Tribunal.

(2) This argument is met with Mr Neoh’s above submissions that, on a proper construction, the obligation to hand over the Lanes under GC9 binds only the grantee, Tat Hing.

(3) As I said above, this submitted construction of GC9 might be sensitive to the relevant factual matrix and should not be entertained for the first time in a judicial review.

(4) It is therefore similarly not appropriate for me to allow Mr Chan to run this new argument now.

88.For all the above reasons, I would also quash the Tribunal’s finding that the Lanes are streets for the purpose of both s 31 of the BO and regulation 23(2) of the B(P)R.

C3. The challenge of the technical ground[17]

89.Mr Neoh submits that the Tribunal has clearly made a mistake of fact by looking at and upholding the technical ground in disapproving the applicants’ redevelopment plans.  This is so because the parties had in fact informed the Tribunal by the time of the closing submissions that the issues of the number of car parking spaces and the size of the refuse room had been resolved by consent.  They were therefore no longer live issues before the Tribunal.

90.Mr Chan for the BA confirms that those issues had in fact been resolved by the parties and were no longer live issues before the Tribunal.  He therefore says fairly that he would not seek to justify the Decision on the basis of the technical ground.

91.I therefore accept and conclude that the Tribunal has made an error of fact in deciding the technical ground.  I further order that this ground be quashed.

C4. The remaining grounds of judicial review

92.The applicants in the Amended Form 86 have also relied on two further grounds to support the judicial review.

93.These grounds are in my view unsustainable.  It is fair to say that Mr Neoh has not pursued these grounds with any vigour at the hearing.  I would deal with them very briefly as follows.

94.First[18], it is said that the Tribunal in making the Decision has failed to exercise its independent judgment and statutory discretion under s 50(2) of the BO.  The gist of the argument is that the Tribunal somehow has not independently looked at the redevelopment plans itself to decide whether or not to approve them itself.

95.There are no merits in this ground.

96.The Tribunal is fully aware of its discretion to consider the matter afresh under s 50(2) of the BO, as it has reminded itself of the same at paragraph 18 of the Decision.  In the Appeals, the applicants have not run any other grounds to justify the plans other than seeking to argue against the BA’s grounds of disapproval.  In the premises, there is simply no question of the Tribunal failing to exercise its discretion to consider the matter independently once it has rejected all the applicants’ grounds of appeal.

97.Second[19], the applicants also say that the Tribunal erred in law in rejecting the submissions that if a reasonable doubt exists as to whether or not the Lanes are on private land, such doubt should be resolved in favour of the applicants on the basis of the case of Wah Yick Enterprises Co Ltd v Building Authority (1999) 2 HKCFAR 170.

98.The Tribunal deals with those submissions at paragraphs 68 and 69 of the Decision as follows:

“68. The Appellants also submitted that if a reasonable doubt exists as to whether or not the Lanes are on Government land such doubt should be resolved in favour of the Appellants. The Appellants prayed in aid the authority of Wah Yick Enterprises Co Ltd v Building Authority (1999) 2 HKCFAR 170. The submission of the Appellants’ Counsel is that similar to the said authority the present case involved the taking of the Lane without compensation and in case of doubt the Lanes should be deemed to be on private land.

69. The Tribunal finds that the authority of Wah Yick Enterprises Co, as submitted by the Respondent’s Counsel, is clearly distinguishable on facts.  That case dealt with the application and interpretation of a statute, namely the Town Planning Ordinance, Cap 131.  The principle on which the Court of Final Appeal based to decide whether the Building Authority did properly exercised his discretion was that ‘a statute should not be held to take away private rights of property without compensation unless the intention to do so is expressed in clear and unambiguous terms’. The context in which the said well established principle arises in respect of interpretation of a statute is very different from the present case where the issue is whether the evidence and circumstances show that the Lanes had been surrendered to the Government pursuant to GC9.  In the context of the present case, the issue of ownership of the Lanes involves no interpretation of statute, not to speak of any law which takes away private rights of property without compensation.  The present Appeals involve purely a matter of application of the relevant common law principles on surrender on the available evidence on a balance of probabilities.  Accordingly, the Tribunal finds that the Appellants’ submission that in case of doubt the question should be resolved in favour of the Appellants is erroneous and rejected.”

99.Suffice for me to say that I agree with the Tribunal’s reasoning in rejecting the applicants’ reliance on Wah Yick. I will similarly dismiss this ground as without any merits.  It is perhaps worth noting that Mr Neoh has not even made any submissions in his skeleton or at the hearing in support of this ground.

D. CONCLUSION

100.For the above reasons, I would allow this judicial review on the basis that:

(1) In finding that there was surrender of the Lanes by estoppel, the Tribunal has erred in law in failing to take into consideration in its evidence weighing exercise (a) the fact that the Lanes were assigned together with the thirty-eight sections of the Lots to the thirty-eight 1^st assignees under the 1^st assignments, and also later (under the subsequent assignments) to the subsequent purchasers, and (b) the fact that the new lot numbers were never assigned to the Lot.

(2) In finding that the 1^st applicant was fixed with the notice of the implied surrender, the Tribunal erred in law for the reasons set out at paragraph 71 above.

(3) In finding that the Lanes (even if there was no surrender of them to the Government) are streets for the purposes of s 31(1) of the BO and regulation 23(2)(a) of the B(P)R, the Tribunal has erred in law in finding that there was “a right of way” created over the Lanes in favour of the Government when the evidence referred to at paragraph 83 of the Decision (and without more and without any explanation) could not reasonably support (in the public law sense) that finding.

(4)     The Tribunal has erred in law in looking at the technical ground, which was no longer a live issue before it.

101.I would therefore quash the Decision, and remit it back to the same Tribunal (insofar as it is practicable) to reconsider the government land ground and the street ground by taking into account the matters I have set out at paragraphs 42 to 45, 53, 55, 71 and 82 above[20].

102.There are no reasons why costs should not follow the event.  I therefore further make an order nisi that costs of this application be to the applicants, to be taxed if not agreed, with certificate for two counsel.

103.Lastly, I thank counsel for their assistance.

Mr Anthony Neoh SC leading Mr Anthony Ismail, instructed by Messrs Lo & Lo, for the 1^st & 2^nd applicants

Mr Abraham Chan, instructed by the Department of Justice, for the Interested Party

Attendance of the respondent excused